Imprecise law allows early campaigning

The reader had a simple question: "Do the rules set down by the Arizona Constitution apply to Sheriff Joe?"

The simple answer: No.

The slightly more complicated answer: They don't apply to any politician.

The reader contacted me because, unlike most of us, he has read the Arizona Constitution and found what he believed to be a clear violation.

Maricopa County Sheriff Joe Arpaio is not up for re-election until 2012, yet he has been running television commercials trashing candidates for different offices and urging viewers to re-elect him two years from now. He also has announced many times that he is an official candidate.

"I just want to let people know that I'm running," Arpaio told me.

The reader wanted to know how the sheriff could do that in light of Article 22, Section 18 of the state Constitution.

"He appears to be in violation," the reader said. "That should get him removed from office."

It might have done just that if the Legislature had not "fixed" Article 22, Section 18.

The amendment was passed by voters in 1980. It's the basis of Arizona's "resign-to-run" law. The idea was to keep politicians from blatantly using one office as a stepping stone for another, and to limit the amount of time politicians can campaign for election during their terms.

In clear, concise English it reads:

"Except during the final year of the term being served, no incumbent of a salaried elective office, whether holding by election or appointment, may offer himself for nomination or election to any salaried local, state or federal office."

In other words, if you're the sheriff, you can't campaign for re-election two years before your term ends, right? Wrong.

A few years after the amendment was approved the Legislature decided to create a law that would "clarify" how it should be enforced. This is what politicians do when they want to transform a perfectly useful statute into one that is essentially useless.

The original amendment says that you can't campaign until your final year in office. Period.

Politicians don't like that kind of clarity, particularly when the rules apply to them.

The law passed by the Legislature says that an incumbent must resign from office if he has "offered himself for nomination" for another office. A candidate has "offered himself" by filing paperwork with the state or making a "formal public declaration of candidacy." But the law doesn't define formal or public, which makes it tough to enforce. (A TV commercial or Facebook posting is public, for instance, but is it formal?)

The revamped measure (ARS 36-296) also says that the amendment's restrictions do not apply "to any incumbent elective officer who seeks re-election to the same office."

This exemption allows politicians like the sheriff to campaign perpetually.

Last year Republicans and Democrats accused each other of violating the resign-to-run law. Because of a conflict, the Attorney General's Office sent the complaints to the Pima County attorney. Nothing happened.

It has been that way more or less since the Legislature fiddled with the amendment.

Amelia Cramer, chief deputy Pima County attorney, told me: "The statute, we concluded, was not as well-written as it might be and was difficult to interpret."

In a written opinion, prosecutors said that "in the absence of clarifying legislation, the resign-to-run laws will not be effective." They asked lawmakers to fix the problem.

But, really, why would they?

This may be the only statute on the books supported by every politician in Arizona.